Bento v The Chief Constable of Bedfordshire Police

Justification in defamation is determined by the civil standard of proof. The seriousness of the allegation affects the evidence required and the care with which it must be examined, but does not create a criminal or heightened standard.

A police force may inform the public about the progress and status of a serious investigation. Qualified privilege does not, however, protect a statement that a prosecution decision was wrong because the acquitted person was probably guilty. A public authority must balance public communication against the individual’s right to reputation. Any response to an anticipated public attack must be limited to a proportionate rebuttal of an imminent attack.

The claimant had been convicted of murdering Kamila Garsztka. The conviction was quashed after fresh expert evidence undermined crucial CCTV evidence, and the Crown Prosecution Service later offered no evidence at a retrial.

The defendant police force issued a press release stating that the case had been discontinued because of confusion about expert evidence, while maintaining that the investigation remained open and that the evidence had initially secured a unanimous conviction. The claimant alleged that the release conveyed that he had probably killed Kamila and that discontinuing the prosecution was wrong.

The issues were whether the publication was justified, whether it was protected by qualified privilege, and, if not, the appropriate damages.

1. Justification. The defendant bore the burden of proving the defamatory meaning. The applicable standard was the balance of probabilities. The seriousness of the allegation required appropriately careful consideration of the evidence, but did not alter the standard itself. The approach in Halford v Brookes [1992] PIQR 175, adopting the criminal standard, could not survive In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and In re D (Secretary of State for Northern Ireland intervening) [2008] 1 WLR 1499.
2. Having considered the evidence as a whole, the court found it possible but substantially less probable that the claimant had killed Kamila than that she had committed suicide. The defence of justification therefore failed.
3. Qualified privilege. There was a legitimate public interest in the police communicating factual information about the investigation. The defendant could have stated that the investigation had been thorough, that the conviction had been quashed, that no other suspect had been identified, and that the files remained open.
4. That public interest did not justify stating or implying that the CPS decision was wrong because the claimant was probably guilty. Such a statement damaged the claimant’s reputation and undermined, rather than promoted, confidence in the criminal justice system. It was not a proportionate interference with the claimant’s Article 8 rights.
5. The court doubted whether qualified privilege should extend to a pre-emptive response to an anticipated media attack. If that principle applied, it was confined to an imminent attack on the publisher’s conduct and a proportionate rebuttal. No such anticipated attack was reasonably established here. Qualified privilege therefore failed.
6. The claimant was awarded £125,000 damages.

The claimant’s conviction was quashed by the Court of Appeal (Criminal Division), which ordered a retrial. The Crown Prosecution Service later offered no evidence and a verdict of not guilty was recorded. This was a first-instance defamation trial in the High Court.